Sunday, July 27, 2014         

 Print   Email   Comment | View 36 Comments   Most Popular   Save   Post   Retweet

Gay married couples look to high court on benefits

By Denise Lavoie

AP Legal Affairs Writer


BOSTON >> Fresh from a favorable ruling by a federal appeals court, Dorene Bowe-Shulman can’t wait for the U.S. Supreme Court to weigh in on whether same-sex married couples should get the same federal benefits as heterosexual couples.

“I really look forward to the next step,” said Bowe-Shulman, one of 17 people from Massachusetts who sued to challenge the constitutionality of the federal Defense of Marriage Act.

On Thursday, the 1st U.S. Circuit Court of Appeals found that the law’s denial of an array of federal benefits to same-sex couples is unconstitutional, affirming a ruling by a federal judge in 2010. Opponents and supporters of gay marriage said the case is now almost certainly headed to the Supreme Court.

Bowe-Shulman, 46, said she wants the case to go before the Supreme Court because it will put a national spotlight on the law and “expose the injustice of DOMA to more people.”

Bowe-Shulman said she and her wife pay about $100 more in taxes each month because she is taxed as part of her wife’s health insurance.

“The harm that DOMA has done hasn’t been so apparent to the general public,” she said.

In a unanimous ruling, a three-judge panel of the 1st Circuit found that the 1996 law deprives gay couples of the rights and privileges granted to heterosexual couples.

The court did not rule on another provision of the law that says states without same-sex marriage cannot be forced to recognize gay unions performed in states where it is legal. The court also was not asked to address whether gay couples have a constitutional right to marry.

The law was passed a time when it appeared Hawaii would legalize gay marriage. Since then, many states have instituted their own bans on gay marriage, while eight states have approved it, led by Massachusetts in 2004 and continuing with Connecticut, New York, Iowa, New Hampshire, Vermont, Maryland, Washington state and the District of Columbia. Maryland and Washington’s laws are not yet in effect and may be subject to referendums.

The 1st Circuit agreed with U.S. District Judge Joseph Tauro, who concluded that the law interferes with the right of a state to define marriage and unconstitutionally denies gay couples federal benefits given to heterosexual couples, including the ability to file joint tax returns.

The ruling came in two lawsuits, one filed by the Boston-based legal group Gay & Lesbian Advocates & defenders and the other by state Attorney General Martha Coakley.

“For me, it’s more just about having equality and not having a system of first- and second-class marriages,” said plaintiff Jonathan Knight, a financial associate at Harvard Medical School who married Marlin Nabors in 2006.

“We can do better, as a country, than that,” said Knight, who estimates that the law costs the couple an extra $1,000 a year.

Opponents of gay marriage criticized the decision.

“This ruling that a state can mandate to the federal government the definition of marriage for the sake of receiving federal benefits, we find really bizarre, rather arrogant, if I may say so,” said Kris Mineau, president of the Massachusetts Family Institute.

Last year, President Barack Obama announced that the Department of Justice would no longer defend the constitutionality of the law. After that, House Speaker John Boehner convened the Bipartisan Legal Advisory Group to defend it. The legal group argued the case before the appeals court.

White House spokesman Jay Carney said the appeals court ruling is “in concert with the president’s views.” Obama, who once opposed gay marriage, declared his unequivocal personal support in recent weeks. Carney wouldn’t say whether the government would actively seek to have the law overturned if the case goes before the Supreme Court. 

“I can’t predict what the next steps will be in handling cases of this nature,” Carney said. 

The 1st Circuit said its ruling would not be enforced until the Supreme Court decides the case, meaning that same-sex married couples will not be eligible to receive the economic benefits denied by the law until the high court rules. Only the Supreme Court has the final say in deciding whether a law passed by Congress is unconstitutional. 

Until Congress passed the law, “the power to define marriage had always been left to individual states,” the appeals court said in its ruling. 

“One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage,” Judge Michael Boudin wrote for the court. “Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.” 

Several times in its ruling, the appeals court noted that the case will probably end up before the high court, at one point saying, “only the Supreme Court can finally decide this unique case.” 

Paul Clement, a Washington, D.C., attorney who defended the law on behalf of the Bipartisan Legal Advisory Group, argued that Congress had a rational basis for passing the Defense of Marriage Act in 1996, when opponents worried that states would be forced to recognize gay marriages performed elsewhere. 

The group said Congress wanted to preserve a traditional and uniform definition of marriage and has the power to define terms used to federal statutes to distribute federal benefits. 

“But we have always been clear we expect this matter ultimately to be decided by the Supreme Court, and that has not changed,” he said in a statement. 

Two of the three judges who decided the case Thursday were Republican appointees, while the other was a Democratic appointee. 

In California, two federal judges have found this year that the law violates the due-process rights of legally married same-sex couples. 

In the most recent case, a judge found the law unconstitutional because it denies long-term health insurance benefits to legal spouses of state employees and retirees. The judge also said a section of the federal tax code that makes the domestic partners of state workers ineligible for long-term care insurance violates the civil rights of people in gay and lesbian relationships. 


Associated Press writers Jay Lindsay and Shannon Young contributed to this report.  

 Print   Email   Comment | View 36 Comments   Most Popular   Save   Post   Retweet

You must be subscribed to participate in discussions
By participating in online discussions you acknowledge that you have agreed to the TERMS OF SERVICE. An insightful discussion of ideas and viewpoints is encouraged, but comments must be civil and in good taste, with no personal attacks. Because only subscribers are allowed to comment, we have your personal information and are able to contact you. If your comments are inappropriate, you may receive a warning, and if you persist with such comments you may be banned from posting. To report comments that you believe do not follow our guidelines, email commentfeedback@staradvertiser.com.
Leave a comment

Please login to leave a comment.
aldfhalisdbflaksdbf wrote:
This law is going down, and when it does Hawaii's legislators are going to have to man-up and permit gay marriage, because civil unions mean nothing for federal purposes.
on May 31,2012 | 06:29AM
roughandtough wrote:
Don't forget what happened to Sodom and Gomorrah. God is the creator of marriage a man and a woman.
on May 31,2012 | 06:41AM
EightOEight wrote:
The destruction of Sodom and Gomorrah happened because of the 'wickedness' and evil of EVERYONE there, including heterosexuals.
on May 31,2012 | 08:12AM
sjean wrote:
Actually, I think it was a seismic event...but there is no science in the bible.
on May 31,2012 | 09:19AM
hawaiikone wrote:
Since "science" continuously discovers itself to be wrong, how could it be included in the Bible? '
on May 31,2012 | 11:55AM
thanks4reading wrote:
and the tooth ferry puts money under my pillow. How about leprechauns? Do you real want to interpret our constitution based upon superstition and mythology? Since we are basing our science on these concepts (global warming, age of the earth, natural selection), I guess that the answer may be yes?
on May 31,2012 | 08:50AM
aomohoa wrote:
I'm straight and I do believe that the definition of marriage is between a man and a woman BUT I think gays, in a civil union should have every single right that heterosexuals have. Get off your righteous high horse!
on May 31,2012 | 09:23AM
Wahiawamauka wrote:
So our government is supposed to enact laws that affect everyone based on you're religious beliefs?
on May 31,2012 | 05:11PM
kainalu wrote:
A federals appeals court is not quite the same as the Supreme Court ... and I do use the term "supreme" lightly. The Supreme Court is nothing more than an extension of a political ideology, and in it's current make-up, a 5-4 conservative-ideology. Once the issue reaches them, the law will hold up, not because it's a good law rather, because the Supreme Court is conservative.
on May 31,2012 | 06:49AM
OldDiver wrote:
Conservative ideology is an understatement. The Supreme Court is now controlled by the right wing fringe element of society.
on May 31,2012 | 08:29AM
Changalang wrote:
DOMA was always going to go before SCOTUS. Timing is everything based on Court make up.
on May 31,2012 | 08:03AM
Kuokoa wrote:
In the end, GOD will prevail and all will be well again.
on May 31,2012 | 08:12AM
EightOEight wrote:
Please let people work things out with their God, who may or may not be the same as yours.
on May 31,2012 | 09:19AM
aomohoa wrote:
Thank you EightOEight! The founds of the Constitution was meant to grow with the times!
on May 31,2012 | 09:26AM
tiki886 wrote:
Next: Legalized pedophilia.
on May 31,2012 | 08:29AM
sjean wrote:
Yep, lots op pedophiliac lesbian couples out there.
on May 31,2012 | 09:17AM
EightOEight wrote:
You can start the campaign for societal acceptance, tiki...go for it.
on May 31,2012 | 09:20AM
DowntownGreen wrote:
Now we see your real agenda. I suspect you will not succeed, but you do have the right to advocate for it.
on May 31,2012 | 10:18AM
hawaiikone wrote:
Unless you can provide secular evidence for withholding your support for the various other potential unions that may begin efforts towards legitimization, you are a hypocrite. Also, since you insist the majority cannot be allowed to determine these matters, how can you infer that tiki may not succeed?
on May 31,2012 | 12:13PM
DowntownGreen wrote:
It's easy to infer tiki won't succeed... just ask the next 10 people you see whether they support pedophia or not. I hope he/she spends his/her time working on that issue... it might help keep him/her from calling others names in this forum.

Regarding my "support" for any issue? That is subject to your opinion, but that doesn't mean I (nor anyone else for that matter) needs to accept your judgements... though you seem to have no problem espousing them and insisting others live by your worldview. Fortunately, in this country, the rest of us do not have to subjugate ourselves to that worldview.

on May 31,2012 | 12:38PM
hawaiikone wrote:
50 yrs ago if you'd have asked 10 people if they would support homosexual marriage, including providing them with the same protections and benefits as heterosexual marriage, I bet the answers would be similar to the ones "tiki" would get if he posed your suggested question today. While pedophilia hopefully will never be considered anything other than despicable. a variety of other potential sexual interactions remain for consideration. Regarding my "judgments", as you've said, they're meaningless. My query was directed at your support or non support of these other potential efforts at legitimacy.
on May 31,2012 | 02:16PM
Wahiawamauka wrote:
I am no big fan of gay marriage either but to equate gay marriage with pedophilia is ludicrous. Gotta change that radio station from glenn beck/ Rush Limbaugh.
on May 31,2012 | 05:23PM
BRock wrote:
Why would you say such a thing?
on May 31,2012 | 05:28PM
bender wrote:
Activists judges. They should be upholding the letter of the law instead of trying to tear it down.
on May 31,2012 | 09:51AM
DowntownGreen wrote:
Their job is to interpret law in reference to the Constitution. That is what they have done.

It's always interesting to watch people call them "activist judges" when they disagree with a ruling, but praise them when they "uphold the Constitution" because they agree with a ruling.

on May 31,2012 | 10:21AM
bender wrote:
Most interpret the law according to their own beliefs. That's why the appointment of judges is such a big political game. And at the local level it's why Abercrombie was so anxious to keep the list of candidates a secret. He knew he wasn't appointing the best qualified but the one who best fit his agenda.
on May 31,2012 | 10:57AM
DowntownGreen wrote:
My hope is that they interpret laws based on their belief in the Constitution and what their duties are. Do personal beleifs enter into their thought processes? Possibly, but we can only hope they will do their duty first. Since it is human nature to be influenced by one's own personal beliefs, I would much rather have an Obama or Abercrombie picking judges than a Romney, Hanneman, or Aiona just in case.
on May 31,2012 | 11:06AM
EightOEight wrote:
High-five on that, Downtown.
on May 31,2012 | 11:24AM
3012708737 wrote:
High-fives all around.
on May 31,2012 | 04:07PM
EightOEight wrote:
Yes, you are right, Downrown, they are supposed to follow the rule of law even if it conflicts with their personal values.
on May 31,2012 | 11:23AM
Wahiawamauka wrote:
Nice to hear some people out there still have brains. A classic example is when the supreme court recently ruled that "corperations are people too". I never seen that in the constitution yet I never heard one republican screaming activism. LOL.
on May 31,2012 | 05:31PM
Tipops wrote:
I second everything aomohoa wrote, but believe that the "politically correct" people in our society will change things anyway in our lifetime regardless of what the silent majority think. They can't help it, they're smarter than everybody else so they get to decide right and wrong.
on May 31,2012 | 10:43AM
3012708737 wrote:
"Politically correct" people--you mean those who would disagree with you? "Silent majority"--you mean those who don't participate in public processes like voting in local and national elections? Instead they sit on their hands at home and stay silent. Or type inane things Internet comments.
on May 31,2012 | 04:05PM
AniMatsuri wrote:
The headline title is wrong. The law isn't about gay "marriage" law. Now if the judges ruled that gay "marriage" laws passed in a handful of states is/is not constitutional, then the headline would be correct.
on May 31,2012 | 11:02AM
who_dis_guy wrote:
I don't understand what the big deal is. Who cares if gays marry. If God says marriage is between a man and a woman, then those who believe in god should abide by that. Those who don't can marry whom they like.
on May 31,2012 | 12:04PM
Dimbulb wrote:
My comment is not about religion or marriage between a man and a woman. It is simply the Constitution. No where in the US Constitution does does it talk about who can marry who or a man getting married to a woman. In the Constitution and amendments there is a number of areas that discuss equal protection and so forth. The Supreme Court's responsibility is to interpret the laws and the Constitution. If the Supreme Court takes this case, regardless of whether Justices are Right or Left I think they would have to rule that married gays must be treated equally for benefits to include taxes. Keep in mind that the Appeals Court did not rule that states must permit or accept gay marriage. That will have to be another case where the Supreme Court would not have to take the case by just saying it is a state's rights issue leaving marriage right where it is today.
on June 1,2012 | 04:57AM
Breaking News
Political Radar
On policy

Warrior Beat
Apple fallout

Wassup Wit Dat!
Can You Spock ‘Em?

Warrior Beat
Meal plan

Volley Shots
Fey, Enriques on MJNT

Political Radar
Wilhelmina Rise, et al.

Court Sense
Cold War